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AGO 1970 No. 14 - June 23, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

PLATS AND SUBDIVISIONS - ORDINANCES - CITY, TOWN OR COUNTY - TIME FOR ADOPTION - APPLICABILITY OF CHAPTER 271, LAWS OF 1969, EX. SESS., TO CERTAIN SUBDIVISIONS

A subdivision of land containing no dedication and no lots or tracts smaller than five acres in size may be made subject to the provisions of chapter 271, Laws of 1969, Ex. Sess., if the county, city or town in which the land is situated enacts an ordinance so providing and it is not necessary that such an ordinance shall have been enacted prior to the effective date of the 1969 act.

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                                                                   June 23, 1970

 

Honorable Martin J. Durkan
State Senator, 47th District
404 Olympic Building
Seattle, Washington 98104

                                                                                                                 Cite as:  AGO 1970 No. 14

 

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office upon a question which we paraphrase as follows:

            In order for a subdivision of land which contains no dedication and in which no lots or tracts are smaller than five acres in size to be subject to the provisions of chapter 271, Laws of 1969, Ex. Sess., must the county, city or town in which the land is situated have so provided by an ordinance enacted prior to the effective date of this 1969 act?

            We answer this question in the negative for the reasons which appear in the analysis below.

                                                                     ANALYSIS

            Chapter 271, Laws of 1969, Ex. Sess., (now codified as chapter 58.17 RCW) was enacted as a uniform platting of subdivisions act.  However, in § 4 of that act (RCW 58.17.040)  [[Orig. Op. Page 2]] the legislature enumerated certain types of subdivisions to which the act was not intended to apply.  This section provides as follows:

            "The provisions of this chapter shall not apply to:

            "(1) Cemeteries and other burial plots while used for that purpose;

            "(2) Divisions of land into lots or tracts where the smallest lot is twenty acres or more and not containing a dedication of a public right-of-way;

            "(3)Divisions of land into lots or tracts none of which are smaller than five acres and not containing a dedication unless the governing authority of the city, town or county in which the land is situated shall have by ordinance provided otherwise.

            "(4) Divisions made by testamentary provisions, the laws of descent, or upon court order."  (Emphasis supplied.)

            Under subsection (3) of this statute, subdivisions of property in which the smallest lot is five acres or more and in which there is no dedication are excluded from the requirements of the act unless the county in which the land is situated by ordinance "shall have" provided otherwise.  Your question concerns the meaning to be given to the phrase "shall have . . . provided" as used in this subsection.

            On its face, this phrase would appear to be susceptible to two different interpretations.  Under one view, the phrase would refer to the time prior to the effective date of the act,1/ and would require that the city, town or county "shall have . . . provided otherwise" by enacting the ordinance prior to the effective date of the act.  Under the other view, this phrase would refer to the time prior to the date on which the subdivision plat is filed, and would require only that the city, town or county "shall have . . . provided otherwise" by enacting the ordinance prior to the  [[Orig. Op. Page 3]] date of that filing.

            In order to resolve this ambiguity, we may, properly, resort to an extrinsic aid; i.e., the legislative history of § 4, chapter 271, Laws of 1969, Ex. Sess., in general, and of subsection (3) thereof in particular.  Accord,State v. Coma, 69 Wn.2d 177, 417 P.2d 853 (1966), and cases cited therein.

            This subsection was not a part of the original version of the bill, Senate Bill No. 169, which became chapter 271, Laws of 1969, Ex. Sess.; nor was it even a part of the later Substitute Senate Bill No. 169.  Instead, this subsection came into being only when the bill reached the free conference committee stage of the legislative proceedings.2/   Under the bill as originally introduced, the text of the exclusionary section to which the subsection in question was later added read as follows:

            "The provisions of this act shall not apply to:

            "(1) Cemeteries and other burial plots, while used for that purpose;

            "(2) Subdivision of land into lots or tracts where the smallest lot isin excess of twenty acres and not containing a dedication of a public right-of-way;

            "(3) Divisions of land required by testamentary provisions, intestate provisions or upon court order."  (Emphasis supplied.)

            In the substitute bill, as passed by the senate and sent to the house, the underscored portion of subsection (2) was changed to read ". . . twenty acres or more . . .," but otherwise the section was not altered up to this point in the proceedings.  Upon reaching the house, however, the bill was significantly amended to delete the word "twenty" in subsection (2) and to substitute therefor the word "five," with the result that subdivisions of land where the smallest  [[Orig. Op. Page 4]] tract was five acres or more in size and not including a dedication would have been unqualifiedly excluded from the requirements of the act.3/

             Thereupon, the bill was returned to the senate, which refused to concur in this house amendment,4/ following which the conference committee procedure was initiated.  However, the conference committee appointed to affect a compromise between the senate and house versions of the bill was unable to do so; hence, free conference powers were then given to this conference committee.5/   It was at this juncture that this committee developed, and reported to the two houses, the text of § 4 as finally enacted (repeated in material part for ease of reference) as follows:

            "The provisions of this act shall not apply to:

            "(1) . . .

            "(2) Divisions of land into lots or tracts where the smallest lot is twenty acres or more and not containing a dedication of a public right-of-way;

            "(3) Divisions of land into lots or tracts none of which are smaller than five acres and not containing a dedication unless the governing authority of the city, town or county in which the land is situated shall have by ordinance provided otherwise.

            "(4) . . ."

            The essence of this compromise version was that the twenty acre minimum of subsection (2), as originally passed by the senate, was retained, but a new subsection (3) was added giving the legislative body of each city, town or county the option to enact or not to enact an ordinance requiring the platting of subdivisions not containing a dedication of which the smallest tract is five acres or larger.  The  [[Orig. Op. Page 5]] proposed effect of this approach was explained by Representative Chapin, a member of the free conference committee, just prior to the house vote approving the bill as framed by the committee:

            "Mr. Chapin:  '. . . Let me explain it this way:  In a division of land of five or more acres, if the smallest piece is larger than five acres, it is totally exempt from any regulation unless the local jurisdiction, under their option, ups that exemption as high as twenty. . . .'

            "Mr. Chapin:  'The basic idea of this . . . was to give as broad a basis of local option and control as we could, consistent with minimum guidelines.' . . ."6/

             Thus, in summary, it is to be seen from this review of the history of the act in question that it was the intent of the legislature to confer upon the various cities, towns and counties the broadest discretion in deciding whether or not and most importantly, when to enact an ordinance of the type spoken of in subsection (3) of the section in question.  Consistent with this intent, we conclude that this ordinance need not have been adopted by a particular municipality prior to the effective date of the act in order for a subdivision of land containing no dedication and no lots or tracts smaller than five acres in size to be made subject to the provisions of the act.

            We trust the foregoing will be of assistance to you.


Very truly yours,

SLADE GORTON
Attorney General

DONALD FOSS, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/I.e., August 11, 1969.  See, Article II, § 41 (Amendment 26), Washington constitution.

2/See, House Journal, pp. 1771-1776; Senate Journal, pp. 1658-1663.

3/House Journal, p. 1362.

4/Senate Journal, pp. 1327-1328.

5/Senate Journal, pp. 1377-1379; 1503; 1607-1608; 1658.  House Journal, pp. 1540-1541; 1556; 1616-1618; 1622-1624; 1642-1644; 1653; 1723.

6/House Journal, p. 1777.

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